Ali v. Ashcroft, No. 03-71731 (9^th Cir. Jan. 15, 2005). 

Ninth Circuit Reverses Lower Court on Finding of Persecution and Eligibility for Asylum 

On review to the Ninth Circuit Court of Appeals, a Board of Immigration Appeals’ decision affirmation of a denial of a petitioner’s request for asylum, withholding of removal, and protection under the Convention Against Torture, was remanded on the grounds that the Petitioner was statutorily eligible for asylum. The Petitioner and her two sons were citizens of Somalia and members of the Midgan clan. Traditionally, members of this clan were considered lower class, and were not allowed to engage in political work. Under the government of Siad Barre, the Migdan clan was allowed to assume political positions, and the Petitioner's husband was given a position within the government. Permitting the traditionally lower class clan to engage in the workings of the government angered higher-class clans. These higher-class clans, which included the United Somali Congress ("USC") militia, overthrew the Siad Barre government in 1991. Clan warfare has ravaged Somalia ever since.  

In January of 1991, six armed members of the USC militia broke into the Petitioner's home, brutally gang-raped the Petitioner, executed her brother-in-law in front of her, and kidnapped her husband. The militia members looted everything of value and destroyed household decorations. The militia members taunted the Petitioner and her family during the rape, calling them Midgan traitors, telling them that their class was not supposed to advance in society, and made comments that Siad Barre could not save them now. The Petitioner recognized one of the militiamen as a neighbor who knew that her husband worked for the Siad Barre government. The Petitioner's husband was released after two weeks of detainment with broken ribs and wrists. The family fled to Ethiopia, where the Petitioner's husband left her, as he could no longer view her as his wife after the rape.  

The Petitioner and her two sons remained in Ethiopia, but did not apply for protection from the Ethiopian government because they would have been placed in refugee camps, where they would have been subject to persecution for their association with the Siad Barre government and their Midgan clan status. Additionally, because of her status as a Midgan, she was not eligible for permanent residence in Ethiopia.  

Petitioner spent five years in Ethiopia in hiding from the Ethiopian government, and working as a maid. When the family that she worked for moved to France, the Petitioner and her two sons entered the United States without inspection. She thereafter filed for asylum and had her petition denied. Despite finding her testimony credibly, the Immigration Judge denied the petitions for asylum, withholding of removal, and the Convention Against Torture claim on the basis that she failed to establish past persecution on account of a protected basis. He held that the sole motivation for the murder, detention, and robbery was simply to steal, and that the rape was merely for gratification. He further held that the Petitioner and her sons had resettled in Ethiopia before entering the United States because the Petitioner chose not to live in refugee camps and was not bothered by the authorities. The Board of Immigration Appeals affirmed the Immigration Judge's decision. 

On appeal, the Ninth Circuit Court of Appeals stated that the law only required the Petitioner to show that the militia was motivated in part by her clan status or political opinion. They held that the words used by the militia while taunting the Petitioner evidenced that they were motivated, at least in part, by the Petitioner's clan status and political opinion, and not solely by criminal opportunism. Additionally, the fact that one of the militiamen was the Petitioner's neighbor and knew the Petitioner well enough to know that her husband worked for Siad Barre, further supported the conclusion that the militia were motivated by the Petitioner's political opinion. The Court held that since the militia members were motivated, at least in part, by the Petitioner's clan membership and political opinion, the Petitioner suffered past persecution. 

The Court stated that because the Petitioner had established past persecution, that she is presumed to have a well-founded fear of future persecution, and that the burden shifts to the Department of Homeland Security to rebut that the Petitioner is eligible for asylum. The government may satisfy this burden by showing that there has been a fundamental change in circumstances within the country, such that the Petitioner and her sons no longer have a well-founded fear of persecution or that they could avoid persecution by moving to another part of Somalia. The Court held that the government did not succeed in rebutting the presumption, and that evidence in the country report indicated that persecution of member's of Siad Barre's former government, as well as members of low-class clans, still continues.  

The Court finally stated that the Petitioner would be ineligible for asylum if she were firmly resettled in Ethiopia prior to entering the United States. For such "firm resettlement" to bar an asylum claim, the Petitioner must have been offered permanent resident status or its equivalent by the Ethiopian government. Since the Petitioner presented testimonial evidence that she never had a right to permanently remain in Ethiopia, the substantial length of time spent there did not give rise to a possible presumption of firm resettlement. The Court held that the fact that the Petitioner evaded detection by the government while living illegally in Ethiopia does not allow for a finding that she was firmly resettled, and reversed the Immigration Judge. 

The Court remanded the issue of the withholding of removal claim to consider the claim in light of the finding that the Petitioner was persecuted in the past, since past persecution gives rise to a presumption of withholding of removal. The Court did affirm the Immigration Judge's determination that the Petitioner and her sons were ineligible under the Convention Against Torture, since no evidence was presented to support a finding that they were eligible.